Hamdan v. Rumsfeld Analysis: More on the Oral Arguments

By Tanya Roth, Esq. on May 08, 2012 | Last updated on March 21, 2019

As we mentioned in this blog last week, the D.C. Circuit Court of Appeals is reviewing Hamdan v. Rumsfeld. The case is the first federal appeal of a military commission conviction by a Guantanamo Bay detainee in the U.S. civilian court.

Last week, the D.C. Circuit heard oral arguments and we discussed the issues presented in the government's case brief. Now, we're bringing you a quick recap of some of the arguments made and the lowdown on what went down at the hearing before Chief Judge Sentelle, Judge Ginsberg and Judge Kavanaugh.

For those who aren't familiar with the case, the case involves Osama Bin Laden's former driver and bodyguard, Salim Hamdan. Between 1996 and 2001, he accompanied Bin Laden to a variety of events, although Hamdan denied participation in any overt act of terror. He was arrested and tried by a military commission and tried on charges of material support. He served his time and was released back to his native Yemen back in 2009.

The key issue in the case was whether Hamdan's charge of material support was an offense that was appropriately tried in front of a military commission.

A military commission hears cases where the defendant is accused of unlawful conduct associated with war. The jurors and judge are military officers.

The issue of mootness was bound to arise, in light of the fact that Salim Hamdan has completed his sentence. A further briefing was ordered into the mootness issue and the parties were both asked to provide a written response within two months as to whether there still existed controversy in the case.

The outcome of the appeal is hard to determine, based on the last week's oral arguments. According to LawFare blog, it appeared that Judge Kavanaugh was skeptical of the government's argument on the ex-post facto issue relating to the definition of the material support charge.

The court is not expected to rule for several months on the case.

Related Resources:

Military Commission Act of 2006 (LawBrain)
Search D.C. Circuit Court of Appeals Cases (FindLaw Cases)
Four Big Questions Heading into the Hamdan Argument (LawFare)
Hamdan v. Rumsfeld (FindLaw Cases)